Far Beyond Filtering: Is The GOP Looking To Shut Down Porn Producers?

from the if-we're-going-to-have-any-morality-around-here,-we've-got-to-ditch-a-fe dept

We recently discussed the GOP's decision to sabotage its new "internet freedom" platform by including some unfortunate anti-porn provisions. Romney declared that, if elected president, every new computer would have an anti-porn filter installed. At the very least, this filtering would be redundant. As Mike pointed out, porn filters already exist and are easily available. If this is being done "for the children," perhaps the application of a porn filter should be left to the parents, rather than made mandatory via legislation.

That handles the user end of the experience. I would imagine that additional filtering might be suggested (or required) at the ISP level, aligning it with efforts in the UK. Whether or not an opt-in Known Perverts option will be available is still open to speculation. Most likely, once the rhetoric clears, it will simply be a matter of computer manufacturers offering filtering software right out of the box. This will fulfill the requirement without needing much more than some cursory compliance checks, and everyone involved will feel proud to have "done something" to keep porn out of kids' eyeballs. This will also be a boon for developers of filtering software, who will be jockeying for lucrative OEM contracts.

Romney hasn't really specified what he means by "computer," meaning that the spread of pre-installed filterware could envelop any device that connects with the internet, including tablets and smartphones. There is also no information on how "mandatory" these filters will be or what issues computer/device manufacturers will face should they fail to comply.

It's a vague concept that hardly anyone will argue against for fear of appearing to be siding with pornographers, or worse, child pornographers (thanks to always-handy conflation). Perhaps more unsettling than the feel-good, do-nothing "filtering" promise is another sentence lurking in the platform: "Current laws on all forms of pornography and obscenity need to be vigorously enforced." Eugene Volokh tackles the troubling implications of this phrase, putting together a set of tactics the government could implement in an effort to enforce standing obscenity laws.

First off, Volokh tries to determine the endgame? Is the intent to shut down as many US pornographers as possible? If so, supply from other sources will fill the demand:

[E]ven if every single U.S. producer is shut down, wouldn't foreign sites happily take up the slack? It's not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make a porn movie. Foreign porn will doubtless be quite an adequate substitute for the U.S. market. Plus the foreign distributors might even be able to make and distribute copies of the existing U.S.-produced stock — I doubt that the imprisoned American copyright owners will be suing them for infringement (unless the U.S. government seizes the copyrights, becomes the world's #1 pornography owner, starts trying to enforce the copyrights against overseas distributors, and gets foreign courts to honor those copyrights, which is far from certain and likely far from cheap).

This is an interesting conjecture. Removing the producers from the equation opens up the possibility that foreign producers would simply do the math and up their profits by reselling product they didn't create. Having the US government eliminate their competition is an added bonus. It seems unlikely that the government would act on the behalf of porn companies it's legislated or prosecuted out of existence. But would it tolerate abuse of American IP, no matter how abhorrent the subject? Probably. The porn industry isn't known for its lobbying efforts.

Moving on, Volokh speculates on three possible outcomes of enforcing existing laws on pornography and obscenity.

The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using the same amount of porn as before.

This tactic sounds like it would work as well as current IP enforcement measures. As it stands now, ICE is better known for its RIAA/MPAA lapdog status than for producing credible results. Sites get taken down, sat on and returned to their owners with no charges brought or apologies offered. Drawing a bead on targets like porn producers makes for some rah-rah press but will have little effect on the amount of porn available.

As ineffective as these actions would be, the greater issue is that increased enforcement will do absolutely nothing to change people's perception of porn:

Nor do I think that the crackdown will somehow subtly affect consumers’ attitudes about the morality of porn — it seems highly unlikely that potential porn consumers will decide to stop getting it because they hear that some porn producers are being prosecuted.

This falls right in line with the perception of file sharing as a "moral" issue. It's all well and good to claim the high road in the fight against infringement, but if the general public doesn't share your beliefs then the battle is not winnable. Legislation and prosecution aren't going to change anyone's mindset. It just makes the punishment seem ridiculous or unduly harsh.

There are more echoes of the ongoing anti-piracy efforts. Volokh's next scenario involves going after foreign producers:

The government gets understandably outraged by the “foreign smut loophole.” “Given all the millions that we’ve invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?,” pornography prosecutors and their political allies would ask. So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

It’s true: Going after cyberporn isn’t really that tough — if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list. Of course, there couldn’t be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond, since even a quick response would take up too much time, and would let the porn sites just move from location to location every several weeks.

This goes far beyond simply requiring pre-installed filtering software. Instituting any sort of a blacklist combines the futility of whack-a-mole with the "we don't have time to follow procedures/respect rights" urgency of "doing something" to make the internet a "safer" place. As these actions prove futile, enforcement will move to cutting off the money supply, targeting credit card transactions, pressuring foreign governments to play by the US''s rules, etc.

The third option, and probably the least palatable to politicians? Going after end users:

Finally, the government can go after the users: Set up “honeypot” sites (seriously, that would be the technically correct name for them) that would look like normal offshore pornography sites. Draw people in to buy the stuff. Figure out who the buyers are. To do that, you'd also have to ban any anonymizer Web sites that might be used to hide such transactions, by setting up some sort of mandatory filtering such as what I described in option (2).

Then arrest the pornography downloaders and prosecute them for receiving obscene material over the Internet, in violation of 18 U.S.C. § 1462; see, e.g.,United States v. Whorley (4th Cir. 2008) (holding that such enforcement is constitutional, and quite plausibly so holding, given the United States v. Orito Supreme Court case).

Politicians may state that they think porn should be outlawed or controlled, and some are even willing to trample on some rights to put that in motion. But it's hard for most to jump from taking down the supply side to attacking the demand. If your aim is to make the internet "safer," it's fairly easy to see that removing users has no effect on "safety." But while this logic leap is hard, it is by no means impossible. The War on Drugs has locked up thousands of users by making possession a crime. "Possession with the intent to distribute" is simply a matter of going above an arbitrary quantity. Possession laws assume the only reason a person would be carrying [x] amount of drugs is because they're selling to others. Would a person with more than [x] megabytes of porn on their hard drive be considered a distributor, thus opening up the possibility of additional charges? I don't see why not, given the attitude surrounding the issues.

There's plenty of food for thought in Volokh's post, especially considering the faint echoes of SOPA/PIPA present in the discussion of enforcing morality. Both parties claim to be working towards a more open internet, but seem willing to scuttle that openness in reaction to hot-button issues or overly-friendly nudges from lobbyists. Ultimately, the question isn't about whether or not porn is "bad" for citizens, but rather, how can these laws possibly be enforced without descending quickly into "draconian measures"?

How can the government's policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that's far, far beyond what any mainstream political figures are talking about right now?

The answer is: it can't. But these concerns aren't being considered, at least not during an election run. Post-election, if anyone gets around to fighting this unwinnable battle, the concerns likely won't be considered at that point, either. It's usually not until the public gets noisy enough to jeopardize politicians' careers that any sort of consideration is given to the rights of the people affected. Even more disturbing is the fact that pursuing this end effects both sides of the creative effort: the producers and the consumers. Considering the resemblance these actions have to past overreaching legislative efforts crafted to "protect" certain industries, it's rather disconcerting to see the possibility of these same actions being used to destroy a creative industry simply because certain people don't care for the product.

Re: Re: The Question I Have

And What About the Bill

Just who is going to pay for all this? How many BILLIONS of dollars of taxpayer money is going to get spent on this game of whack-a-mole. The cost to the taxpayer is going to go up and lots of people are going to be put out of jobs (maybe not the corn farmers but somebody is making money and paying taxes). So, the cost goes up and the tax revenue goes down. How is that helping?

Re: And What About the Bill

It is worse than that. The US government is running at a massive deficit, and has been for years. So the crazy politicians have already spent far more money than they have got. They make it up by borrowing and printing more money. They have now got themselves (and the US taxpayer) into a situation of stupendously large debt. So they have no alternative but to print money. Of course, they put a pleasant-sounding spin on it by calling it "quantitative easing", but money printing is what it really is. Hello inflation.

Inflation is the only thing holding up the US stock market. The investors have figured out that USA is heading for economic disaster, but they are hanging in there until things get obvious. Then there will be a reckoning. It will not be pretty. If you thought US politics is nasty and stupid now, you ain't seen nothing, yet. The 99% will cop it with low wages and unemployment. The 1% will be laughing all the way to the bank, as per usual.

Neither the Rs or the Ds have the faintest idea how to fix it. Come on, you US voters, do your duty.

Republicans, all for smaller government and deregulation unless it's to do with sex, marriage or religion. It's such an obviously contradictory set of ideas that I'm utterly amazed that such a level of cognitive dissonance does not cause the brain to melt and dribble out the ears.... wait... that would actually explain a lot.

Re: Re:

Re:

> Republicans, all for smaller government and
> deregulation unless it's to do with sex,
> marriage or religion.

And it's just the opposite with Democrats. They're all about the government keeping out of people's lives when it comes to sex, marriage, and religion, but then turn around and want the federal government to micromanage absolutely everything else, to include determining how much of your own money you actually need.

Re: Re:

Yes, because God/Krishna/Allah/Yahweh/FSM forbid that you actually want to benefit from 'socialised' benefits such as roads, infrastructure, food & air standards, healthcare, social security net, edumacation, etc...

Also, I've never understood how people who scream "Bogeyman!" at the federal government will happily give the same powers, and more, to the state & city governments...

Re:

Re:

I don't live in a basement. My mother's house for one didn't have a basement. Second, I live in a very nice two bedroom apartment, with easy access to local amenities (my workplace is only fifteen minutes walk away, so no need to use the car!)

Re:

Got to be kidding me

Politicians are trying to give US morals? Maybe they should grow some morals of their own first. Selling out your fellow human beings for a few campaign contributions does insanely more damage than porn ever could to humans.

Republicans, working as hard as they can to take us back to the 1950's, except without worker's rights.

Highlighting

To me, this is the most pertinent paragraph of the whole blog post. Many here have made this same point a great many times, yet those in power can't possibly grasp such a simple concept.

This falls right in line with the perception of file sharing as a "moral" issue. It's all well and good to claim the high road in the fight against infringement, but if the general public doesn't share your beliefs then the battle is not winnable. Legislation and prosecution aren't going to change anyone's mindset. It just makes the punishment seem ridiculous or unduly harsh.

The fact is the more conservative the area is the more porn sales per capita there are. This will only serve to increase the market for porn sales in the US, and be just as big of a failure as the war on drugs and prohibition.

And there's LOTS of small porn producers in the US, especially free ones, so there would be lots of arrests if it got outlawed. Also an issue, if you outlaw porn what if a case happens like a girl friend gives a boy friend naked pictures of herself, but then they break up and the boy friend publishes them on the Internet, who's committed a crime by spreading porn to minors?

It makes just as absurd a situation with prostitution being illegal, but selling porn being illegal. It's illegal to pay for sex, but it's legal to pay for someone (or two someones) to have sex in front of a camera so you can sell the video on the Internet.

Re:

They want to ban porn? Seriously, Romney wants to ban porn and he had the balls enough to say this during his campaign? Isn't the "no porn" thing what killed off Beta-Max? Romney really doesn't want to get elected does he?

You imagine?

"I would imagine that additional filtering might be suggested (or required) at the ISP level, aligning it with efforts in the UK."

Tim if there's a factual reason that you imagine this, you say so, otherwise this sentence makes it sound like one of two things:
1. You're a no-good louse just trying to muck up someone's reputation (horrible though it may already be) by associating your unfounding imaginings to them. (This one doesn't have my vote. Your posts may have a less formal feel than others here, but you always seem like a well thought out and decent guy.)

2. You were in a hurry and trying to squeeze in another techdirt link, which is relevant, but not just because you imagine it is.

Re: You imagine?

Re: You imagine?

I'm not sure who's reputation it is that I'm supposedly ruining, seeing as this post is largely a hypothetical discussion of how current obscenity laws might be enforced.

But, I don't think there's so much a "factual" basis for my very hedged claim as much as there is a very slim distance separating requiring filtering software in every computer (which the purchaser may decide not to install -- which puts us right back to "filtering software exists IF someone wants it") to requiring the filtering be done at the ISPs to make it a little less "optional."

If things were to go this far, I can see how pre-installed filtering software that can be activated or deactivated by the end user won't be enough to protect children from porn, etc.

Volokh's second scenario pretty much comes to the same conclusion, so I'm not alone in besmirching the GOP and UK ISPs:

So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

It’s true: Going after cyberporn isn’t really that tough — if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list.

That's in the post above. It deals with foreign porn sites but you really don't have to worry about them until you've already filtered out the stateside offerings.

Re: Child pornography...

OK, I gave the arguments a chance, but I don't think they bring enough to legalese child porn.

I understand argument 1 and while I agree the current laws are more about hiding the problem then doing something about it, I don't think people will get in trouble for turning in child molesters.

I completely agree with argument 2. In fact, that argument has been brought up here.

I do not agree with argument three. There are plenty of things that we do not allow and do not violate the first amendment. If banning child pornography is a way to start censoring anything, then so is arresting people for planning a crime (conspiracy).

Re: Re: Re: Child pornography...

If child porn was legalized, something else would be used as a scapegoat. Look at what's happening with the evil, evil piracy. Piracy alone isn't working any more so now they're talking about counterfeit drugs and military equipment.

The system will be abused unless we keep a strict eye on it. This is not a good reason to legalize anything.

...require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list. Of course, there couldn’t be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond, since even a quick response would take up too much time...

it doesn't matter what the subject is, the USA hates anyone else producing anything that is not taxable or profitable to the US. basically, what the US wants is to be able to use and profit from whatever it wants, regardless of where it is produced or by whom. the ultimate aim being to completely control the Internet. As Tim Berners-Lee said a couple of days ago, the Internet is a decentralised system. the only way to turn it off is if governments all over the world co-ordinated to make it a centralised system. seems like the US is trying to do that by the back door, forcing other countries to do as it says by threatening sanctions for non-compliance with what it says over IP rules and copyright regulations and introducing laws to protect it's own products at the expense of everyone elses

Lobbyists?

The porn industry isn't known for their lobbying efforts? that's odd... One would think they would be really good at it. Just send a couple out of work actresses to visit a few lawmakers... Man, the laws would pretty much write themselves!

Re: Lobbyists?

V Chip for the new century

Remember the Vchip? How's that working out?
It'll be no different.

If the Reps want to do something for the children,they can start by getting rid of irresponsible parents and keeping their noses outta people's bedrooms.
I have had lots of experience with Mormons and a more hypocritical and secretive bunch of wackos do not exist anywhere.(except for maybe Scientology)
Also from experience...they do love their porn!

If porn is outlawed, only outlaws will have porn.

Why is it that these "small government" RapeubliCONs want to create bigger government to take away our free speech?
And why do they say that government is the problem, then when elected, go and prove it with their stupid ideas??
Inquiring minds want to know.

Both parties claim to be working towards a more open internet, but seem willing to scuttle that openness in reaction to hot-button issues or overly-friendly nudges from lobbyists.

"open internet"...
"hot-button issues"...
"nudges"...

Jesus, man, do you kiss your mom with that mouth?

On a more serious note: sure, everybody gets pleasure from porn on the internet, but let me ask you something - does any one of you ever think of pleasuring the internet? Do you buy it flowers once in a while? Do you ever just cuddle with the internet? Do you have the decency to at least use a RIBBED VPN?

Re:

I don't think the worst case scenarios listed above will happen. At worst, a slightly more porn-restrictive law or 2 will be passed. Don't forget, Romney's VP is the budget-hawk Ryan; Ryan will not OK spending so much tax dollars when those same dollars are better used elsewhere.

Volokh's missing the point

What's scary about the Republican proposal is not the things that the government could do to "vigorously enforce" the current pornography and obscenity laws.

Under the current laws, most internet pornography is not illegal. More than that, the current laws against obscenity already tend to be enforced pretty vigorously -- mostly because any porn that actually crosses the line into illegality is nasty enough to horrify almost everybody.

What the Republicans are talking about here is not, in fact, anything to do with enforcement. What they're talking about is redefining obscenity to include a lot of things that were previously classed as protected speech. And that is scary.

The Current GOP are truly a bunch of disgusting A-Holes.These guys do not want smaller Government and less debt.They just want to force this whole Nation into backwards thinking 19TH Century World.Read some Article on how their Current Platform is sounding like a Platform from 1812 not 2012.
And yes after they ram thru their Porn BS they will next ram thru some IP BS for all those Big Donor Copyright Maximalists.
Both Parties would love to be able to control the Internet and both will do what they can to accomplish this goal.
I truly hate this Current Government and give them a nearly ZERO Approval.
Stupid Corrupt GOP & Dems I will not be sorry to see the lot of you Tarred & Feathered as in the days of old.

Jealousy

Ive often felt the reason right wingers have so much resentment towards sexually liberated people is because they are so repressed themselves. This goes double for the politicians. Imagine the frustration: you are rich, powerful, surrounded by beautiful women and men willing to bed you, but you can't take advantage of it for fear of getting caught in violation of your party's morality platform.

Sideshow distraction

This is all this is. Those in control of the Republican agenda don't really give a shit about porn and never have. They give a shit about protecting the ability of the wealthy to abuse the system at the expense of those less wealthy than they. And to do that they have to focus public attention on other issues based on the religious convictions of the manipulated middle class. They don't have to be successful at stopping porn. They just have to be successful at convincing the middle class that the Republican agenda is in their best interest when it is clearly not to anyone that has the ability to stop and think about things logically long enough to see through the charade.

This is absurd. If you think for one second that Romney is serious about this then you don't understand politics. It's obviously another pre-election promise that is specifically designed to be one of those things that everyone is politically required to agree to in principle. Thus, Romney can trumpet his "righteous" stance and moral grounding without any opposition- he's just filling space in airtime that doesn't alienate anyone. The mistake is in thinking that he will ever follow through on this noble stance... It will just be forgotten after the election like all his other promises...

I wonder if the copyright lobby might have something to do with this. There are some youtube like sites that are meant for porn, but where other copyrighted movies have been uploaded from time to time, because Hollywood is not likely to look there for any pirated copies of their films.

If it stops Steve Jones and John Steele from suing innocent people... hm. I don't know. If it had the above effect I'd imagine people could be behind it. You can't get sued for allegedly pirating something that's illegal to produce!

DNS level filtering is not as difficult to do. One open-source filter, OpenDNS, uses DNS-level filtering. It simply directs request at the DNS level to a blocked-site page, not unlike what Sen. Leahy wanted to do with PIPA. OpenDNS filtering is included on Netgear wireless routers.

I would imagine any nationwide smut-filter might also use a DNS level filter like what OpenDNS uses.

Blocking TPB

Anyone else notice this could be a back-door method to block The Pirate Bay in the US? They have porn, some of it illegal in the US, and require no age verification (only a user account.)

Sounds suspiciously like hollywood is willing to weaken IP laws if it takes down BitTorrent. After all, the vast majority of trackers also have a porn category and thus almost all of them would end up under such a filter.

Personally, I am a single athiest. I am also an American citizen. Last but not least, I am a fucking nerd. Take away my porn and you might as well take away citizenship.

On second thought, scratch that. I've been meaning to become Canadian for a while now. After all, 14 cents per CD-R is a small price to pay for healthcare and unfiltered internet.